Letter
from The Hague: At trial's end, Balkans gain collective memory
WEDNESDAY,
MARCH 29, 2006
All that work was stopped in its tracks. On March 13, two days after Milosevic's death, the court ended the case here, leaving lawyers and court officials, witnesses and victims abruptly bereft of any sense of closure.
So has the first international criminal trial of a head of state bequeathed more than immense frustration?
Yes, albeit almost accidentally.
The prosecution set out to tell the detailed history of three Yugoslav wars because it saw this as the only way to uncover what it believed was Milosevic's often hidden hand in the political and military nightmare.
Yet the nature of the trial worked against this objective since it was not the role of prosecutors to be historians. Rather, their mission was to establish proof.
"Proof will include truth, but it will not present the full picture," Geoffrey Nice, the lead prosecutor, once said. "We have a limitless field of evidence from the wars, but we are not inquiring like scientists; we are asked to extract from it."
With Milosevic's death, no judges will weigh this evidence and, in practice, what remains is the prosecution's account - one in which the three wars are attributed almost entirely to Milosevic.
The court did not indict the other wartime leaders. Franjo Tudjman, the president of Croatia, was under investigation but died in 1999. Nor did it focus on the role of the Bosnian Muslim president, Alija Izetbegovic. Other trials dealing with senior Muslims and Croats aim to provide a more balanced view of the wars that accompanied the breakup of Yugoslavia. The country's dissolution may have been inevitable, but prosecutors argued that Milosevic was most to blame for its violence.
Milosevic himself devoted almost his entire defense to charges related to Kosovo, a Serbian province. In that sense, a tested version of history exists and it may influence future cases.
In a broader sense, the court's biggest but aborted case can claim some successes. Even without a verdict, it is helping to shape a collective memory of the Balkan tragedy.
In its volume of work are the building blocks and procedural lessons for future trials. Not least it established the precedent, long unthinkable, of having a former head of state face a criminal trial before an international court.
Even some of the evidence presented in the Milosevic trial may have a second life. At the trial's great predecessor of Nazi leaders at Nuremberg, the occupying Allied troops had an immense paper trail of signed orders. But while Germans recorded most things, Milosevic wrote very little.
So over the four-year trial a painstaking reconstruction has taken place, using witnesses, insiders, affidavits, letters, and transcripts of phone taps and radio intercepts. Some of that evidence may be admitted in other trials.
Eligible topics could include the role of special forces, their links to the militia, Milosevic's use of secret parallel commands, Belgrade's payment of equipment, salaries and pensions to its proxy army in Bosnia.
In addition, the Milosevic prosecution team has created a vast database where evidence can be retrieved for other trials. Nice, the lead prosecutor, has said he wants to make it publicly accessible as a tool for scholars, lawyers, researchers or journalists.
"It should have a long shelf life," he told a friend. "If there had been a detailed record of a trial in ancient Rome, we'd be reading it today."
Nonetheless, the court has understood that its strategy in the Milosevic case created an overly cumbersome case and a poor role model for future high-profile trials.
It has not gone unnoticed here that in the trial of Saddam Hussein, the prosecution has focused narrowly on one infamous case of brutality, rather than addressing the accumulated horrors of his regime.
But lawyers at the court say the two cases are very different. Saddam is on trial as a perpetrator who directly participated in a single event. Milosevic was always far from the scene. He was accused of command responsibility, for planning and ordering the crimes of others.
The way the prosecution made its case required charting the entire political and military structure of Yugoslavia. One lawyer said there was no simple event, standing alone, that could be sliced off and pinned on Milosevic. Moreover, he argued, the trial did not aim to simply seek retribution but had grander ambitions. It wanted to help shape the history of the war, to spur Serbs to end their denial of atrocities and reconnect Serbian society to the rest of Europe.
Lawyers will be debating for a long time whether this can or should be the role of a criminal trial.
Even as the trial was still limping along, bogged down by its scope and by a part-time schedule imposed by Milosevic's doctors, there was much internal finger pointing over who was to blame for the lack of progress.
Judges had no doubt that the scale of the trial was unmanageable, linking three wars over a 10-year period. At several stages, judges tried to break up the indictment and deal separately with the war in Kosovo. Even last November, both Milosevic and the prosecutors fought against that and the judges accepted reluctantly.
Prosecutors often complained that they found the judges too lenient with Milosevic. He had played the United Nations, the Europeans and the Americans during the war, and was able to play the court, the International Criminal Tribunal for the Former Yugoslavia.
Despite his filibustering and his declining health, the judges never limited his right to defend himself. Rather, to protect him from his hubris and lack of court experience, they sought to ensure fairness by appointing a defense team, two experienced British lawyers.
The legacy of the trial is already making itself felt behind the scenes. As the court deals with the rest of its caseload, it will be harder for any accused to obtain the right to defend himself, and nearly impossible for someone who is sick.
Court officials have privately said that international tribunals handling complex war crimes cases need the most able and experienced of judges. Several judges who retired after serving in The Hague have said they deplored working alongside inexperienced judges who came from diplomatic, academic or political posts. Patrick Robinson, the judge who presided over the Milosevic trial, had a long diplomatic career but almost no trial experience. He replaced Sir Richard May, who died during the trial.
There is much internal debate about whether the dominant common law system where most evidence has to be heard orally, in full, in the courtroom, should not move closer to the inquisitorial system where judges play a more active role and more evidence is accepted in writing.
Evidence in writing has already become more acceptable at the tribunal. But future shifts do not alter the plight of the Milosevic prosecutors who wrote a sweeping historical indictment and ended up, not with jurisprudence - a verdict and sentence - but mostly with food for historians.
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Tomorrow: Amelia Gentleman on the glamorization of India's railroads.
E-mail: [EMAIL PROTECTED] Tomorrow: Amelia Gentleman on the glamorization of India's railroads.
